MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
Sep 09 2015, 8:35 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Suzy St. John Gregory F. Zoeller
Marion County Public Defender Attorney General of Indiana
Appellate Division
Indianapolis, Indiana Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Xiomara Kyle, September 9, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1501-CR-39
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Allan W. Reid,
Appellee-Plaintiff Judge Pro Tempore
Trial Court Cause No.
49F10-1403-CM-13264
Crone, Judge.
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Case Summary
[1] Xiomara Kyle appeals her conviction for class A misdemeanor operating while
intoxicated (“OWI”) with endangerment (“Count I”). She challenges the trial
court’s admission of her statement to police that she was the driver of the
crashed vehicle. She also contends that she was deprived of her constitutional
protection against double jeopardy when the trial court failed to vacate her
conviction of one count of operating a vehicle with a blood alcohol
concentration (“BAC”) above 0.15% (“Count II”). We affirm her conviction
on Count I and remand with instructions to clarify the abstract of judgment to
specify that the judgment of conviction for Count II was either vacated or never
entered.
Facts and Procedural History
[2] On March 13, 2014, Kyle went to a casino with her friends Jackie and Michael
Dodd. The group traveled in the Dodds’ vehicle, and by the time they left the
casino around 2:00 a.m., Kyle had consumed multiple alcoholic beverages. On
the trip home, shortly after 4:00 a.m., the vehicle crashed into a barrier wall
along Interstate 465 and was positioned such that the driver’s side doors could
not be opened.
[3] At 4:26 a.m., Indiana State Trooper Stephon Mason was dispatched to the
accident scene. On arrival, he saw Jackie emerge from the back passenger’s
seat and observed Kyle climbing from the driver’s seat to the front passenger’s
seat with help from Michael, who was outside the vehicle. When Trooper
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Mason asked who had been driving, Jackie and Michael denied driving, and
Kyle admitted that she had been the driver. She told the officer that she had
crashed the vehicle while experiencing a seizure and that she had broken her
hip. She also told him that she had consumed alcoholic beverages. Trooper
Mason observed that she had glassy, red eyes and slurred speech and smelled
like an alcoholic beverage. Kyle was transported to a local hospital, where she
consented to a blood draw. At 6:09 a.m., her BAC registered at 0.25%.
[4] The State charged Kyle with Count I class A misdemeanor OWI with
endangerment and Count II class A misdemeanor operating a vehicle with a
BAC above 0.15%. The trial court found her guilty as charged, but pursuant to
the State’s request, the court indicated that Count II would merge with Count I.
The trial court sentenced her only on Count I. Kyle now appeals. Additional
facts will be provided as necessary.
Discussion and Decision
Section 1 – The trial court acted within its discretion in
admitting the officer’s testimony concerning Kyle’s
confession that she was the driver.
[5] Kyle challenges the trial court’s admission of her statement to Trooper Mason
that she was driving the vehicle when it crashed. In recognition of the trial
court’s broad discretion when ruling on the admissibility of evidence, we
reverse those rulings only when the trial court has abused its discretion.
Halliburton v. State, 1 N.E.3d 670, 675 (Ind. 2013). An abuse of discretion
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occurs where the trial court’s decision is against the logic and effect of the facts
and circumstances before it. Id.
[6] At the outset, we address the State’s argument that Kyle waived her challenge
to the admissibility of her confession by failing to raise a contemporaneous
objection at trial and failing to raise it as fundamental error on appeal. See
Rhodes v. State, 996 N.E.2d 450, 454 (Ind. Ct. App. 2013) (finding waiver where
defendant failed to make contemporaneous objection or otherwise demonstrate
fundamental error); see also Hollingsworth v. State, 987 N.E.2d 1096, 1098-99
(Ind. Ct. App. 2013) (finding waiver where appellant failed to present cogent
argument on fundamental error in brief), trans. denied. Although we agree with
the State that ordinarily waiver would apply where the defendant failed to
object at trial and has failed to raise the issue as fundamental error on appeal,
we note that Kyle challenges the admission of her confession within the context
of her primary argument that the State failed to establish the corpus delicti, or
“body or material substance of the crime.” Harkrader v. State, 553 N.E.2d 1231,
1233 (Ind. Ct. App. 1990), trans. denied.
[7] As used in criminal law, the corpus delicti refers to the “the fact that a crime
has been committed” by someone. Hunt v. State, 216 Ind. 171, 178, 23 N.E.2d
681, 684 (1939). The rationale behind the rule is to prevent convictions based
solely on a defendant’s extrajudicial confession to a crime without adequate
corroboration that a crime was committed at all. Jones v. State, 253 Ind. 235,
244, 252 N.E.2d 572, 577 (1969), cert. denied (1977).
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[8] “The corpus delicti need not be established prior to admission of the confession so long
as the totality of independent evidence presented at trial establishes it.” Winters
v. State, 727 N.E.2d 758, 762 (Ind. Ct. App. 2000), trans. denied (emphasis
added). Because the stringent rules concerning the order of proof have been
“abrogated by this Court,” the State is permitted to offer testimony concerning
a defendant’s confession before establishing the corpus delicti. Williams v. State,
837 N.E.2d 615, 618 (Ind. Ct. App. 2005), trans. denied (2006). The State can
establish the corpus delicti at any time during its case-in-chief “by independent
evidence from which an inference may be drawn that a crime was committed.”
Winters, 727 N.E.2d at 762.
[9] Here, Kyle requested dismissal after the State’s case-in-chief, claiming that the
State had failed to establish the corpus delicti and that its case could not be
predicated solely upon her confession to Trooper Mason. See Hunt, 216 Ind. at
178, 23 N.E.2d at 684 (“the mere extrajudicial admission or confession of the
accused, uncorroborated by other evidence, will not establish the corpus
delicti.”). Within the limited context of establishing the corpus delicti, we find
this to be sufficient to preserve the issue for appeal even absent a
contemporaneous objection. See Pawloski v. State, 269 Ind. 350, 359, 380
N.E.2d 1230, 1235 (1978) (reasoning that because order of proof is within trial
court’s discretion, trial court did not err in allowing State to reopen case-in-chief
to establish corpus delicti by independent evidence beyond defendant’s
confession).
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[10] Turning now to Kyle’s argument, she asserts that the State failed to present
sufficient evidence independent of her confession to establish the corpus delicti
for Count I. 1 We disagree. First, the independent evidence required to
establish the corpus delicti need not be direct but rather may be circumstantial.
Id. Moreover, “[t]he independent evidence need not be shown beyond a
reasonable doubt nor demonstrate prima facie proof as to each element of the
charged offense, but must support an inference that the crime was committed.”
Willoughby v. State, 552 N.E.2d 462, 467 (Ind. 1990) (emphasis added). In other
words, for the defendant’s confession to be admissible, there must be “some
evidence of probative value aside from the confession that tends to prove the
commission of the crime.” Id. (internal quotation marks omitted).
[11] For an OWI case, the corpus delicti requires proof that (1) a motor vehicle was
operated on a public highway and (2) the operator of the vehicle was
intoxicated at the time. Hunt, 216 Ind. at 178, 23 N.E.2d at 684. 2 Kyle appears
to contend that, in order to satisfy the element of intoxication for purposes of
establishing the corpus delicti, the State was required to prove not only that she
was intoxicated but also that Michael and Jackie were intoxicated, thus creating
a failsafe scenario in which, regardless of which one of the three actually
1
Kyle was charged with OWI with endangerment. See Ind. Code § 9-30-5-2 (“a person who operates a
vehicle while intoxicated commits … a Class A misdemeanor if the person operates a vehicle in a manner
that endangers a person.”).
2
For the offense of OWI with endangerment, the corpus delicti would seemingly require a showing that
endangerment occurred. Kyle does not dispute that the vehicle was crashed on an interstate highway, a
circumstance that involved endangerment to its occupants.
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operated the vehicle, the operator would have been intoxicated. 3 We believe
that she misconstrues the standard for establishing the sufficiency of evidence to
support the admission of her confession, which is not proof beyond a reasonable
doubt, but merely independent evidence sufficient to support an inference that a
crime occurred. 4
[12] The independent evidence shows the following: the vehicle crashed into an
interstate highway barrier wall, and no one could exit the driver’s side doors.
When Trooper Mason arrived, he observed Kyle moving from the driver’s seat
toward the passenger’s seat, a maneuver that would have been unnecessary had
she not been in the driver’s seat. The officer saw Jackie exit from the back
passenger’s side door, and Michael was already out of the vehicle and was
leaning in to assist Kyle as she moved across the front seats toward the open
front door on the passenger’s side. This evidence is sufficient to support an
inference that Kyle was the operator of the vehicle. Her intoxication was
established by her blood test result and corroborated by Trooper Mason’s
observations at the scene. This independent evidence is sufficient to establish
the corpus delicti. In fact, the independent evidence shows not only that a
crime was committed, but also that Kyle was the one who committed it.
3
Regarding whether Jackie and Michael were intoxicated, Trooper Mason testified that “they did appear to
have consumed alcohol of some sort” and explained that he did no further investigation with respect to the
level of their intoxication once Kyle admitted to be being the driver. Tr. at 24-26.
4
Obviously, once the confession is admitted and independent evidence supports an inference that a crime
was committed, the State must prove each element of the offense beyond a reasonable doubt in order to
support the conviction itself. Kyle does not challenge the sufficiency of evidence to support her conviction.
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Consequently, the trial court did not abuse its discretion in admitting Trooper
Mason’s testimony that Kyle confessed to being the driver of the crashed
vehicle. As such, we affirm her conviction on Count I.
Section 2 – Due to double jeopardy concerns, the trial
court must vacate the judgment of conviction on Count
II and clarify the record accordingly.
[13] Kyle maintains that the trial court erred in failing to vacate Count II due to
double jeopardy concerns. “A double jeopardy violation occurs when
judgments of conviction are entered for the same criminal act and cannot be
remedied by the ‘practical effect’ of concurrent sentences or by merger after
conviction has been entered.” West v. State, 22 N.E.3d 872, 875 (Ind. Ct. App.
2014), trans. denied (2015). “A trial court’s act of merging, without also vacating
the conviction, is not sufficient to cure a double jeopardy violation.” Id.
[14] At the close of Kyle’s trial, the trial court initially stated that it would enter a
judgment of conviction on both counts. The State requested that the
convictions be merged and sentence entered on only one count, and the trial
court indicated that it would merge Count II into Count I. With respect to
Count II, the abstract of judgment simply states “conviction merged.”
Appellant’s App. at 9. The abstract does not indicate whether the trial court
actually entered judgment on Count II. As such, we remand with instructions
to vacate the judgment of conviction on Count II or specify that such judgment
was not entered, thereby clarifying the written record.
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[15] Affirmed and remanded.
May, J., and Bradford, J., concur.
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